A View from Post-Saddam Iraq
The struggle of women's rights activists in Iraq after 2003 also brings to the fore the notion that the 1958 constitutional replacement was a founding moment. The US-led invasion in 2003 was accompanied by promises to turn Iraq into a free and democratic country in which women's rights would be enshrined.
All too soon, however, Iraqi women's rights activists began cautioning that developments were pulling Iraqi women back to the past. It was not only the memory of life under Saddam's regime that fanned their fears; they were also haunted by ghosts of a more distant history. Activists often alluded to the British attempt at state building and its harsh long-lasting consequences for women.The fear that under the American-led coalition, Iraq would revert to past British policies of reliance on tribal leaders and sanctioning customary law was not unfounded. Following the 2003 invasion, British forces, faced with the urgent need to re-establish law and order across the southern part of the country, searched for precedents from their earlier experience in Iraq. Military lawyers, it was reported, were ‘dusting down the system of law used during the 38-year British Mandate in Iraq in an urgent effort to reach a workable interim criminal and civil code before a new constitution and legal system is agreed’.[1024] What they were in fact contemplating was a resurrection of the TCCDR.[1025] By 2005 and even before the Americans' massive use of the tribal ‘Awakening' fighters, coalition forces, increasingly desperate to impose order, were recruiting tribal elements to secure borders and protect oil facilities. Under the mounting disorder, tribal courts were convened, sanctioning coercive practices pertaining to women. At the same time, in debates regarding the permanent constitution, some negotiators were pressing for the recognition of tribal justice.[1026]
Activists' response to the threat of ‘retribalisation' was informed by the struggles of their predecessors during the monarchy period.
From the onset of the war in 2003, notwithstanding support for the idea that all groups with a stake in Iraq's future should be included in decision-making, activists expressed concern regarding the incorporation of tribal leaders in positions of power. Turning tribal leaders into a political mainstay, they warned, might result in acquiescence to values and customs detrimental to women.[1027] Songul Chapuk, a member of the interim Iraqi Governing Council (IGC) and a women’s rights activist, cautioned, for example, that if the tribes were to take over matters of civil society, women would be deprived of their rights and would be dragged back to ‘the days of the monarchy and the feudalist regime’. [1028] The tribal system, Chapuk noted, does not recognise women’s rights; it does not view women as independent entities, but as possessions. Women’s rights supporters thus sought to write into the interim and permanent constitutions clauses that would afford legal protection to women against gender-based tribal laws and practices.[1029] Their protest apparently led to a modification of the article in the Constitution promising that the state would seek the advancement of Iraqi tribes and uphold their noble human values to also guarantee that ‘the state shall prohibit tribal customs that are in contradiction of human rights’ (Article 45.2).[1030]In the realm of personal status, activists also found themselves struggling to preserve past gains. In December 2003, the US-appointed IGC passed Resolution 137 abolishing the 1959 Personal Status Law. Clerics of each and every community in Iraq were to take the state’s place in administering matters of personal status for members of their respective sects or religious groups. Iraqi activists were quick to react. They warned of the consequences of wresting control over family affairs from the hands of the state. Retired judge Zakiyya Isma‘il Haqqi reflected most clearly the reason for women politicians and activists’ protests.
Since 1959, she said, Iraqi family law has developed and been amended under a series of governments, giving women a ‘half-share in society’ and an opportunity to develop as individuals. Referring to Resolution 137, she said: ‘ This new law will send Iraqi families back to the Middle Ages. It will allow men to have four or five or six wives. It will take children away from their mothers. It will allow anyone who calls himself a cleric to open an Islamic court in his house and decide who can marry and divorce and have rights.’[1031]Fierce resistance, spearheaded by Iraqi women politicians and activists, facilitated the repeal of this resolution two months later. However, this did not prevent further moves to annul the law on the part of both clerics and religious politicians who sat on the committee charged with the drafting of a new permanent constitution. In fact, Article 41 of the 2005 Constitution adopted Resolution 137 to a large extent, stating that ‘Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs or choices, and this shall be regulated by law’. While clearly securing the religious option, Article 41 did not refer explicitly to an alternative recourse to secular family law, and the 1959 Personal Status Law was not given as a clear option. While not closing the door completely on the existing Personal Status legislation, it reduced it to an exception rather than the rule. Activists were angry and disappointed. Maysun al-Damluji, a politician and women’s rights activist, said that Iraqi women had gained many rights in the past 45 years and it was absurd to give up these achievements. Safiyya Suhayl who worked closely with the George W Bush administration and was appointed as Iraq’s Ambassador to Egypt, protested: ‘When we came back from exile, we thought we were going to improve the rights and position of women. But look what happened - we have lost all the gains we made over the last 30 years. It’s a big disappointment.’[1032] Activists’ disappointment stemmed not only from the loss of achievements for which their foremothers had struggled long and hard for decades, but also from the weakening of the very channel that after 1959 made advancements in the realm of personal status possible.
VII.